On
March 4, 2013, Cosmo and Catherine Cremaldi (the
"Cremaldis") filed this action in the Middlesex
Superior Court for the Commonwealth of Massachusetts alleging
that defendant Wells Fargo Bank, N.A. ("Wells
Fargo") irreparably damaged their credit, caused them to
incur excessive interest charges, and caused them emotional
distress while reviewing their eligibility for a loan
modification. Plaintiffs allege that Wells Fargo repeatedly
encouraged them to apply for a loan modification for which
they were not qualified and instructed them to cease making
mortgage payments. Plaintiffs further allege that after
requiring them to wait for months while late fees and
penalties accrued, Wells Fargo placed their mortgage in
foreclosure without considering them for a modification.
Plaintiffs allege that, as a result, they were required to
pay Wells Fargo thousands of dollars in fees to reinstate
their mortgage and avoid foreclosure.

On June
29, 2016, defendant moved for summary judgment. See
Docket No. 78. On August 2, 2016, plaintiffs moved to strike
certain portions of the record submitted by defendant in
support of its motion for summary judgment. See
Docket No. 89. On August 16, 2016, defendant filed a cross
motion to strike certain portions of the record submitted by
plaintiffs in support of its opposition to defendant's
motion for summary judgment. See Docket No. 92.

The
Magistrate Judge issued her Report and Recommendation on
January 3, 2017. See Docket No. 108. In it, she
recommends that the court allow defendant's motion to
strike and allow in part and deny in part plaintiffs'
motion to strike. In addition, she recommends that the court
allow defendant's motion for summary judgment. On January
16, 2017, plaintiffs filed objections to the Report and
Recommendation (Docket No. 110), and on January 30, 2017,
defendant filed an opposition to those objections (Docket No.
112) .

The
court has reviewed de novo the issues to which a
proper objection has been made. See Fed.R.Civ.P.
72(b)(3). The court finds the Report and Recommendation to be
thorough, thoughtful, and persuasive. Therefore, the Report
and Recommendation is being incorporated in this Memorandum
and Order and is being adopted.

Plaintiffs
Cosmo and Catherine Cremaldi have brought this action against
defendant Wells Fargo Bank, N.A. d/b/a Wells Fargo Home
Mortgage, alleging that Wells Fargo irreparably damaged their
credit, caused them to incur excessive interest charges, and
caused them emotional distress while reviewing their
eligibility for a loan modification. Plaintiffs allege that
Wells Fargo repeatedly encouraged them to apply for a loan
modification for which they were not qualified and instructed
them to cease making mortgage payments. After requiring the
plaintiffs to wait for months while late fees and penalties
accrued, Wells Fargo placed their mortgage in foreclosure
without considering them for a modification. The plaintiffs
further allege that they were required to pay Wells Fargo
thousands of dollars in fees to reinstate their mortgage and
avoid foreclosure.

Wells
Fargo has filed a motion for summary judgment in its favor on
all of plaintiffs' claims. Docket No. 78.[1] For the following
reasons, the Court recommends that the District Judge
assigned to this case grant the motion.

I.
PROCEDURAL BACKGROUND

On
March 1, 2013, the Cremaldis filed their complaint in
Massachusetts Superior Court. See Docket No. 7 at
38. Defendants removed the case to this Court on July 24,
2013. Docket No. 1.

On
August 30, 2013, Wells Fargo filed a motion to dismiss,
Docket No. 8, which the District Court denied. Docket No. 16.

The
Cremaldis filed an amended complaint on May 15, 2015. Docket
No. 27. On the same date, Wells Fargo filed a motion for
reconsideration of the District Court's decision denying
its motion to dismiss, which the District Court denied on
November 2, 2015. Docket No. 37.

Wells
Fargo filed the instant motion for summary judgment on June
29, 2016. Docket No. 78. On August 2, 2016, the Cremaldis
filed their opposition as well as a motion to strike certain
portions of the record. Docket Nos. 87, 89. Wells Fargo filed
a reply[2] and a cross-motion to strike on August 16,
2016. Docket Nos. 90, 92. The Court heard oral argument on
December 14, 2016.

II.
FACTS

A.
Scope Of The Record

Both
parties have moved to strike evidence proffered by the other
in support of their arguments. Docket Nos. 89, 92. Because
the motions to strike bear on the evidence that the Court may
consider in deciding Wells Fargo's motion for summary
judgment, the Court is considering them first.

1.
Plaintiffs' Motion To Strike

The
Cremaldis have moved to strike the affidavits of Kimberly Ann
Mueggenberg and Dallin Wilson. Docket No. 89. In the
alternative, they move the Court to "strike all
assertions set forth in said affidavits except as such
portions as the Court deems appropriate to consider relative
to [Wells Fargo's motion for summary judgment]."
Id. at 1.

Rule
56(c)(4) requires affidavits in support or opposition of
motions for summary judgment to be made "on personal
knowledge, set out facts that would be admissible in
evidence, and show that the affiant or declarant is competent
to testify on the matters stated." Fed.R.Civ.P.
56(c)(4). In deciding a motion for summary judgment, "a
court may take into account any material that would be
admissible or usable at trial... [but] inadmissible evidence
may not be considered." Facev v. Dickhaut 91
F.Supp.3d 12, 19 (D. Mass. 2014) (quoting Horta v.
Sullivan, 4 F.3d 2, 8 (1st Cir. 1993)). "If
evidence cannot be presented in a form that would be
admissible at trial, the court may not rely on it."
Id. (citations omitted).

A party
moving to strike an affidavit must specify the objectionable
portions of the affidavit and the specific grounds for
objection. Id. (citations omitted). The Court will
disregard only those portions of the affidavit that are
inadmissible and consider the rest of it. Id. First,
the Cremaldis request that the Court strike the entire
Affidavit of Kimberly Ann Mueggenberg in Support of Wells
Fargo's Motion for Summary Judgment ("Mueggenberg
Aff"). Docket No. 80 at 14-182. Ms. Mueggenberg is the
Vice President of Loan Documentation at Wells Fargo.
Mueggenberg Aff. at ¶ 1. The Cremaldis object to the
Court's consideration of Ms. Mueggenberg's affidavit
because "she has no personal knowledge of the matters
described in the business records for which she testifies,
her testimony in some cases is misleading and inaccurate, and
because Wells Fargo presumably has employees with personal
knowledge of such matters and has not secured their
affidavits or otherwise offered their testimony to this
Court." Id., at 4-5.

Ms.
Mueggenberg specifically avers that in the regular
performance of her job functions, she is "familiar with
the business records maintained by Wells Fargo for the
purpose of servicing mortgage loans and [has] personal
knowledge of the operations and the circumstances surrounding
the preparation, maintenance and retrieval of records in
Wells Fargo's recordkeeping systems."[3] Mueggenberg Aff.
at ¶ 3. This statement forms a sufficient foundation for
an assertion of personal knowledge of the records attached to
her affidavit. See Brown v. Bank of Am., No.
13-13256-PBS, 2015 WL 5163045, at *3 (D. Mass. Sept. 3,
2015); Foregger v. Residential Credit Solutions.
Inc.. No. 12-11914-FDS, 2014 WL 1364788, at *4 (D. Mass.
Apr. 4, 2014): see also Facev v. Dickhaut, 91
F.Supp.3d at 20-21 ("Motions to strike have been denied
even when the declarant did not personally experience the
matters discussed in the affidavit, but did review business
or public records and included information from those records
with the affidavit."). To the extent that the Cremaldis
challenge the accuracy of Ms. Mueggenberg's statements or
the substance of the underlying records, those arguments go
to the weight of Ms. Mueggenberg's testimony and not to
its admissibility. See Brown v. Bank of Am., 2015 WL
5163045, at *3. Therefore, the Court finds that Ms.
Mueggenberg's affidavit may be considered in connection
with Wells Fargo's motion for summary judgment.

The
Cremaldis also object to consideration of the Affidavit of
Dallin Wilson, Esq. in Support of Wells Fargo's Motion
for Summary Judgment ("Wilson Aff."). Docket No. 80
at 184446. Attorney Wilson represents Wells Fargo in this
matter. Attorney Wilson's affidavit authenticates and
attaches documents that the Cremaldis produced in this
litigation, or documents that he personally retrieved from
publicly available sources. See Docket No. 92 at 4. The
Cremaldis argue that the Court should not consider the
affidavit to the extent that Attorney Wilson is
characterizing the substance of the exhibits to the
affidavit. Docket No. 89 at 5. The Cremaldis also argue that
Attorney Wilson's characterizations are inconsistent
with, if not intentionally misleading, regarding the contents
of the documents. Id. Wells Fargo acknowledges that
Attorney Wilson's descriptions of the contents of the
documents are not evidence and that the Court may reach its
own conclusions from its review of the documents. Docket No.
92 at 4-5. The Court therefore finds that it is appropriate
to consider Attorney Wilson's affidavit only to the
extent that it authenticates documents. The Court will not
consider Attorney Wilson's characterization regarding the
contents of the documents attached to his affidavit.

Accordingly,
the Court recommends that the District Judge grant in part
and deny in part the Cremaldis' motion to strike as
described above.

2.
Wells Fargo's Motion To Strike

Wells
Fargo has moved to strike Exhibit 4 to the Cremaldis'
opposition to Wells Fargo's motion for summary judgment.
Docket No. 92 at 12-14. Wells Fargo states that Exhibit 4 is
a document captioned "Customer Account Activity
Statement" with the heading "Attorney Work Product
- Do Not Distribute." Id. at 12. In preparation
for an earlier mediation session, Wells Fargo provided a copy
of Exhibit 4 to the Cremaldis to allow them to better
understand their payment history and to facilitate settlement
in this matter. Id. In his email transmitting
Exhibit 4 to plaintiffs' counsel, Wells Fargo's
counsel stated the following:

Please note that this payment history was created
specifically for settlement purposes only and is not
admissible as evidence. Also note that the document is marked
as "Work Product" and Wells Fargo is not waiving
its right to assert privilege with respect to this document
or any other during the course of litigation.

Docket No. 92-3.

Rule
408 of the Federal Rules of Evidence prohibits the
introduction into evidence of settlement offers or conduct or
statements made during settlement negotiations "to prove
or disprove the validity of amount of a disputed claim."
Fed.R.Evid. 408. However, Rule 408 does not protect
preexisting information simply because it was presented to
the adversary in compromise negotiations. Fed.R.Evid. 408,
Advisory Committee Notes, 2006 Amendment. At oral argument,
counsel for Wells Fargo stated that Exhibit 4 was created by
Wells Fargo for counsel's use in this litigation and was
not prepared specifically for the mediation. Accordingly,
Rule 408 does not preclude the use of Exhibit 4.

To the
extent that Wells Fargo argues that Exhibit 4 is protected by
the attorney work product doctrine, see Docket No. 99 at 1,
any privilege was waived when Wells Fargo shared the document
with its adversary. See Brvan Corp. v. Chemwerth.
Inc.296 F.R.D. 31, 38 (D. Mass. 2013) (citations
omitted) (work product protection is waived when documents
are disclosed to adversary, see also United States v.
Massachusetts Institute of Tech., 129 F.3d 681, 687 (1st
Cir. 1997) ("[W]ork product protection is provided
against 'adversaries, ' so only disclosing material
in a way inconsistent with keeping it from an adversary
waives work product protection.").

Nevertheless,
the Cremaldis have not properly authenticated Exhibit 4 as a
business record or otherwise. Indeed, Wells Fargo maintains
that the document has not been verified as accurate but was
rather prepared solely to be of assistance to counsel in
understanding the payment history for the Cremaldis'
loan. See Docket No. 99 at 1. Because the Cremaldis have
failed to establish that the document would be admissible in
evidence, the Court may not properly rely on it. Accordingly,
the Court recommends that the District Court grant Wells
Fargo's motion to strike.

On May
2, 1972, the Cremaldis purchased the real estate located at
11-13 William Street, Cambridge, Massachusetts (the
"William Street Property") for $44,
000.[5]
On October 30, 1974, the Cremaldis purchased the real estate
located at 588-590 Franklin Street, Cambridge, Massachusetts
(the "Franklin Street Property") for $40,
000.[6]
On October 29, 1991, the Cremaldis purchased the real estate
located at 31-33 Putnam Avenue, Cambridge, Massachusetts (the
"Putnam Avenue Property") for $270,
000.[7]
At all relevant times, the Cremaldis were generating
approximately $13, 000 per month from their rental
units.[8]

Cosmo
Cremaldi entered into a loan with Wachovia Mortgage, FSB, a
Federal Savings Bank, its successors and/or assignees, for
the principal amount of $640, 000 (the "Loan") by
signing a Fixed Rate Mortgage Note dated January 25,
2008.[9] The Loan was secured by a Mortgage on the
William Street Property, that was also dated January 25, 2008
(the "Mortgage").[10]

On
November 1, 2009, Wachovia Mortgage, FSB changed its name to
Wells Fargo Bank Southwest, N.A. and merged into Wells Fargo
Bank, N.A.[11]

2.
The Cremaldis' Attempts To Modify The Loan

In
2010, the Cremaldis started having financial problems and
trouble making their monthly mortgage payments.[12] Around
September 2010, the Cremaldis began contacting Wells Fargo to
request assistance in staying current on their
Mortgage.[13] In September 2010, a
borrower[14] contacted Wells Fargo to set up a
payment arrangement.[15]

In
September and October 2010, the Cremaldis did not have enough
funds available to pay their Mortgage.[16] On November
30, 2010, Ms. Cremaldi called Wells Fargo and told them that
she was unable to make her Mortgage payment.[17] Wells
Fargo's representative suggested that the long-term
solution would be a loan modification but that the Cremaldis
were not eligible for the Home Affordable Modification
Program ("HAMP") because they were not behind on
their Loan Payments.[18] Wells Fargo's notes on the call also
state that the Cremaldis were only having trouble for
December and were looking for a one-month
deferment.[19] The note also states that Wells
Fargo's representative "adv[ised] borrower to call
back next week about a potential repayment plan reduction for
borrowers. 1-800-282-3451. Stated consquences
[sic]."[20]

Ms.
Cremaldi testified that when the Cremaldis first started
contacting Wells Fargo, they were only seeking a temporary
deferment (forbearance) and were not interested in a
permanent loan modification.[21] Mr. Cremaldi did not
understand the difference between a temporary deferment and a
permanent loan modification and the first time he heard about
HAMP was in 2015.[22]

The
Cremaldis allege that at some point they were instructed to
stop making mortgage payments so that they would qualify for
a loan modification. Because this is a key allegation of
their case, and the parties have different characterizations
of the Cremaldis' testimony on this point, the Court
quotes the relevant portions of the Cremaldis' testimony
in this regard below. Mr. Cremaldi testified as follows:

Q: I understand your claim in this lawsuit is that at some
time someone from Wells Fargo instructed you to stop paying
your mortgage, is that correct?

A: That is correct.

Q: We'll get to answers to interrogatories that you guys
produced in this case, but is it true that you claim November
30th is the first time someone from Wells Fargo
instructed you to stop paying your mortgage?

A: Again, my memory, I know it was mentioned somewhere along
the line but I couldn't give you a timeline.

Q: Fair to say though there's nothing in this entry that
mentions the bank instructing you to stop paying your
mortgage.

A: No.

***

Q: So I know you say you don't remember exactly when
somebody from Wells Fargo told you to stop paying your
mortgage. When they did tell you, can you tell me to the best
of your memory what exactly they told you in regards to stop
paying your mortgage?

A: I was told that I was up to date on my mortgage payments
and that I didn't qualify because I'd have to be in
default.

Q: Did they only tell you you were not eligible because you
were not in default or did they actually tell you you should
stop paying your mortgage?

A: That's correct, what you're saying.

Q: Were you surprised to hear the bank telling you to stop
paying your mortgage?

A: Yes.

Q: Did you ask them any questions about what the consequences
would be if you stopped paying your mortgage?

A: Yes.

Q: What did they tell you? A: That I was not to worry, that
eventually it would all straighten out once the modification
or whatever they were talking about was concluded.

***

Q: Generally speaking though, is it your recollection that
you did make periodic payments to the bank during this time?

A: Yes.

Q: And what was the purpose of making those periodic payments
if the bank had told you to stop making payments?

A: Good faith, trying to establish good faith.

Q: During this time do you recall ever telling the bank that
the reason you had stopped paying was because somebody at the
bank had told you to stop paying?

Q: So when you called on November 30th, your
testimony is that you were unable to make your mortgage
payment, is that correct?

A: Uh-hum. Yes.

Q: I believe this is the phone call that you allege was when
Wells Fargo first told you to stop making your mortgage
payments; is that true?

A: It was after we had filed the papers for the - - what was
it called again?

Q: HAMP? Modification?

A: Modification. It was after so many of them that we then
said what else can we do.

Q: On November 30th, which seems pretty early in
the process, is it your testimony that at that point in time
the bank didn't tell you to stop making your mortgage
payments, at least on this phone call on November 30?

A: What year was that?

Q: 2010.

A: I can't remember. I don't know what year it was.
It was after all this started. Q: So it was after you
submitted some applications?

A: Yes.

Q: Do you know if as of November 30, 2010, you guys had
submitted any paperwork yet?

A: I can't remember.

Q: Does this sound like this is maybe the first time you
learned about a modification?

A: Yes. That's true.

Q: Do you remember who it was at Wells Fargo that told you to
stop paying the mortgage?

A: There's a sheet I wrote down names. It was different
people.

Q: So there was more than one person who told ...

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